Irregular Migration and Fundamental Rights in the EU: a continuing controversy

I have recently been invited to three major events, the European Migration Network’s (EMN) annual conference on 25 October in Warsaw, the EU Council’s Strategic Committee for Immigration, Frontiers and Asylum (SCIFA) on 8 November in Brussels and the EU Fundamental Rights Agency’s annual conference on 21-22 November again in Warsaw. In addition, I also addressed a seminar by the Spanish Ministry of Science and Innovation (MICINN) and others on 24 October in Madrid. All four events concentrated on irregular migration, though from rather different perspectives.

The conferencesThe EMN is the network of the EU member states’ own research institutes that mainly serve the needs of governments and parliaments. This year’s conference was held in Warsaw, attended by around 200 people (EMN 2011) and devoted to ‘Combating Illegal Migration’. The SCIFA meeting, amongst others, addressed the issue of ‘illegal migration – current trends and priorities for further action’. It was attended by around 150 participants, all representatives from the member states, mainly from Ministries of Interior and/or migration departments. The meeting was addressed by IOM, Frontex and myself. The MICINN (2011) seminar on ‘International Migration and Security’ suggested ‘new issues, new approaches’. Finally, the FRA conference on the ‘Dignity and Rights of Irregular Immigrants’ was attended by 300 participants from governments, NGOs and some academics. Already the titles illustrate that these events had rather contrasting aims.

A decline in clandestine entryThese conferences were held against the background of a decreasing irregular immigrant population and irregular border crossings in the EU. The research I presented at these meetings suggests that clandestine entry to the EU is down to 100,000 -150,000 apprehensions which is only 0,021% of all arrivals from outside the EU. Also the irregular immigrant population in the EU has decreased from an estimated 3.1-5.3 million in 2002 to 1.9-3.8 million in the EU-27 in 2008, 0.39-0.77% of the total EU population, 499 million in 2008. This decline can be explained by the combined effect of

(1) EU expansion, various previous sending countries of IM, including Poland, have become member states;

(2) legal migration channels and improved access to visa;

(3) the regularisation of over 3.5 million irregular migrants since 1996;

(4) enhanced border and internal immigration controls and law enforcement; and

(5) the consequences of the economic crisis which distracts further immigration (Düvell and Vollmer 2011).

Finally, EU levels of irregular immigration are much lower than in the EU, implying that the EU is faring much better than the US (Düvell 2011).

Conflicting positionsAt the November 2011 FRA conference Frontex director Laitinen acknowledged that ‘border controls are not the solution’ to the migration challenge, ‘it is an illusion’ he argued. Frontex deputy director Arias, at the October 2011 MICINN seminar, agreed that ‘entry controls do not prevent people to come’ and implied that the focus on border security is not particular effective. By and large, Arias acknowledged that often Frontex’ ‘activities are politically driven’ and not by intelligence as they ‘like to believe’. In contrast, at the November 2011 SCIFA meeting the Commission representative reiterated the perception that ‘the pressure on our borders … stay with us’.

The German representative insisted that despite decreasing numbers, illegal migration ‘remains a big problem’, that ‘regional concentration [leads to] high political [meaning media] attention’ and thus irregular migration continues to be of ‘high political significance’.

Finally, the Polish chair insisted that ‘we have to continue until all our borders are safe’. Thus, certain actors either do not believe or acknowledge that the situation has relaxed and instead insist to continue or even intensify ‘combating illegal migration’ (EMN 2011).

This suggests that policy responses are mainly (a) driven by media discourses and public perception and (b) by political principles.

In contrast, at the 2011 FRA conference speakers insisted that the EU has to ‘protect fundamental rights of all present on our territory’ including irregular immigrants (Malmstrom, EU Commissioner), that ‘we have to protect fundamental rights’ (Brande, Commission of the Regions), that ‘everybody should enjoy their fundamental rights ‘regardless of their legal status’ (Kang, UNHC for Human Rights) and that ‘you don’t need a visa or residence permit to be entitled to human rights’ (Kjaerum, director, FRA). The Portuguese secretary of State, Duarte, insisted ‘that we must find the solution elsewhere, namely in establishing a number of core rights that must be granted to undocumented migrants’.

Also, at the EMN 2011 conference, key note speakers called for a more ‘balanced approach’ to irregular migration, implying greater attention to human rights issues. At the 2011 MICINN seminar, the Spanish Secretary of State, Terron, went a step further and suggested that ‘first, migrant security, …avoiding vulnerability [and] giving individual security’ should be considered. Finally, Polish undersecretary Szpunar in his concluding remarks at the FRA conference promoted ‘openness’ and suggested that ‘regularization’, a hotly contested policy in the EU, ‘is a good example …to addressing the problem of irregular migration’ (all FRA conference quotes see FRA 2011b).

The future of EU policyThrough these events, important cornerstones are set for the future direction of EU policies in the field. Notably the FRA conference illustrates that after a decade or so of campaigning and lobbying the international and some European and international institutions, as well as some departments in some member states have now accepted that irregular immigrants have rights and thus challenge the conventional enforcement agenda often demanded by the media, promoted by conservative parties and insisted by ministries for the interior.

These policy agendas on the one hand demonstrate some complementarity of EU politics – law enforcement and protecting fundamental rights – whilst on the other hand also point to some significant tension between the various actors, i.e. EU Commission, FRA, Committee of the Regions, UN and some members states, notably the national ministries of interior but also amongst and within member states. Whilst FRA promotes a rights-based approach and not even Frontex seems to believe that border controls are appropriate to address the challenges of migration it is certain member states and notably ministries of interior (spurred by media and political parties) that nevertheless insist in a rigid approach and in tough law-enforcement based policies.

But there is also some compromise in the air: whilst the human rights advocates accept the states’ claim to right to protect their borders and accordingly enforce the law, even if they may not always agree with this, law enforcement advocates may be accepting that immigration law enforcement must comply with fundamental rights even if this limits law enforcement.